LOS ANGELES – The judge in Phil Spector’s murder trial scolded the music producer’s defense team Thursday for a “deliberate and egregious” violation of discovery rules that was done “to gain a tactical advantage and to throw the prosecution off their game.”

Superior Court Judge Larry Paul Fidler dressed down the lawyers outside the jury’s presence and said he would be drafting “a pinpoint instruction” at the end of the case that would tell jurors what had happened.

He said the instruction would not be aimed at Spector.

“It does not go to guilt or innocence. It goes to the prosecution’s ability to present its case.”

The issue has been percolating in the trial since Tuesday, when defense witness Dr. Michael Baden sprang a new forensic theory involving the shooting death of actress Lana Clarkson at Spector’s home.

Baden had testified he recently concluded Clarkson’s spinal cord was not completely severed when a bullet tore through her mouth on Feb. 3, 2003. The opinion supports defense claims that Clarkson could have spewed blood onto Spector’s jacket with her dying gasps after she was shot.

Baden conceded during his testimony that he had an “aha!” moment last Sunday and came up with the theory. Prosecutors said they did not learn of it until he testified and were unable to rebut it.

The judge noted that he and most of the veteran lawyers in the case “grew up under a different system.” Before an initiative changed the law, “The prosecution gave discovery (of their evidence) and the defense didn’t” under Fifth Amendment prohibitions against self-incrimination.

After the initiative was passed, he said, both the U.S. Supreme Court and the California Supreme Court ruled that discovery had to be reciprocal.

“It is given very grudgingly and a majority of people don’t like it,” he said. “But it is controlling.”

Defense attorney Bradley Brunon argued that most of the defense team did not know about Baden’s planned testimony and said no harm had been done because the prosecution had been able to do extensive cross-examination in subsequent days. The judge was unconvinced.

“There was a violation. It was to gain a tactical advantage and to throw the prosecution off their game,” he said.

“This is the kind of thing that is going to deter the defense bar,” he said. “It’s the only way we will put an end to this game playing.”

Brunon responded that the judge’s comments regarding a deterrent effect was out of line.

“The court should not be sending messages,” Brunon said. “We’re not here to establish lessons but to resolve the discrete issue in this case.”

He also said the only lawyer who knew of the new theory was Christopher Plourd, who questioned Baden.

“It doesn’t change the fact that a member of the team did it,” said Fidler.

In the heat of argument, Brunon said, “To interpret it that way is the court putting the thumb on the scales.”

The judge exploded at Brunon: “That’s very insulting and you’d better withdraw that comment.” The attorney immediately withdrew it and during a break he apologized to the judge again. Fidler said they would move past it.

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